SAMIKSHA BHATTACHARYA, MEMBER
This is to consider an application being No. IA/753/2022 filed by OP No. 3 AMRI Hospital, Salt Lake.
Ld. Advocate for the OP No. 3 has submitted before this commission that after receipt of summons, the OP No. 3/applicant appeared and contested the consumer complaint by filing written version. Subsequently, complainant submitted evidence on affidavit, which has been duly cross-examined by the OP No. 3. Thereafter, opportunity was given to OP NO. 3 and the other OPs for adducing evidence. On 11.04.2022, the matter was fixed for filing affidavit-in-chief/evidence on affidavit by the OPs. On that date, the OP No. 3 took an adjournment for filing evidence and accordingly this Commission fixed the matter on 27.07.2022 for filing evidence on affidavit as a last chance.
But unfortunately, due to inadvertence, the next date has been posted in the diary of the conducting Advocate of the OP No. 3 on 28.07.2022 instead of 27.07.2022. Accordingly, the Ld. Advocate for the OP No. 3 was in impression that the evidence would be filed on 28.07.2022. Due to wrong posting in the case diary of the conducting Advocate, the OP No. 3 could not able to file evidence on affidavit which has been already prepared for filing on 27.07.2022 and the applicant could not appear on 27.07.2022 and therefore, the Commission closed the opportunity to file evidence on affidavit on that day. The mistake occurred regarding posting next date in the case diary of the conducting Advocate was unintentional and apart from the fact that evidence was already prepared and was ready for filing but due to misposting the applicant could not file the same on the date fixed. Therefore, the OP No. 3 prays for accepting the evidence and opportunity be given to be cross-examined. Hence the application.
Ld. Advocate for the complainant has not filed any written objection against the application. The Ld. Advocate for the complainant has submitted that he has no objection if the petition is allowed.
Upon hearing the parties and on perusal of the entire materials on record particularly, the photocopy of the case diary filed by the conducting Advocate of the OP No. 3 it appears to us that the date was fixed wrongly on 28.07.2022 instead of 27.07.2022. But as per statute this Commission is not in a position to modify or alter its own order.
Moreover, as per Section 50 of CP Act, 2019, the power to review the order of this Commission is only to some limited extent where there is error on the face of the record. In the order No. 22 dated 27.07.2022 we find no apparent error on the face of the record. On the previous date i.e., on 11.04.2022 the next date was fixed on 27.07.2022 for filing evidence on affidavit by the OPs No. 1 & 3. Since none appeared on 27.07.2022 the opportunity for filing evidence on affidavit by the OPs No. 1 and 3 was closed.
The Ld. Advocate for the OP No. 3 has submitted that since the complainant has given consent to accept the petition along with the evidence on affidavit filed by OP No. 3 along with the Interlocutory Application, the petition should be considered. Since the statute has not given any opportunity to us to modify or recall our own order, we are not in a position to allow the instant application by giving the opportunity to OP No. 3 for filing evidence on affidavit. In view of above discussion, Ld. Advocate for OP No. 3 has cited the judgment passed by the Hon’ble Apex Court in Vibha Bakshi Gokhle & Annr. Vs. Guruhaship Construction Ors. [reported in II (2019) CPJ 108 SC]. The judgment cited by the Ld. Advocate for OP No. 3 is not at all applicable here. In the cited judgment the complaint case was restored and the Apex Court held that complaint case should not be dismissed on mere technical ground so that the ends of justice are not defeated.
In view of above discussion, the instant application being No. IA/753/2022 is rejected on contest.
There is no order as to costs.
The Interlocutory Application being No. IA/753/2023 is disposed of accordingly.
